Ex Parte Munoz-Bustamante

Patent Trial and Appeal Board

Nov 29, 2016

12712747 (P.T.A.B. Nov. 29, 2016)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O.Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
12/712,747 02/25/2010 Carlos Munoz-Bustamante RPS920090048USNP(710.127) 3327
58127 7590 11/29/2016
FERENCE & ASSOCIATES LLC
409 BROAD STREET
PITTSBURGH, PA 15143
EXAMINER
PERLMAN, DAVID S
ART UNIT PAPER NUMBER
2666
MAIL DATE DELIVERY MODE
11/29/2016 PAPER
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CARLOS MUNOZ-BUST AM ANTE
Appeal 2015-007605
Application 12/712,7471
Technology Center 2600
Before ST. JOHN COURTENAY III, JENNIFER L. McKEOWN,
and NORMAN H. BEAMER, Administrative Patent Judges.
BEAMER, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) the Examiner’s Final
Rejection of claims 1—3, 6—12, and 15—22. Claims 4, 5, 13, and 14 are
cancelled. We have jurisdiction over the pending rejected claims under 35
U.S.C. § 6(b).
We affirm.
1 Appellant identifies Lenovo (Singapore) PTE. LTD., as the real party in
interest. (App. Br. 3.)
Appeal 2015-007605
Application 12/712,747
THE INVENTION
Appellant’s disclosed and claimed invention is directed to facial
recognition systems implemented for access control purposes. (Abstract.)
Claim 1, reproduced below, is illustrative of the subject matter on appeal:
1. An apparatus comprising:
one or more processors; and
a program storage device tangibly embodying a program
of instructions executable by the one or more processors, the
program of instructions comprising:
computer readable program code configured to prompt a
user for image data;
computer readable program code configured to capture
an image of the user;
computer readable program code configured to process
the image;
computer readable program code configured to determine
if the image matches reference image data, wherein the
reference image data corresponds to a previously obtained non­
standard facial pose image of the user; and
computer readable program code configured to grant
access to the apparatus responsive to a match between the
image captured and the previously obtained nonstandard facial
pose image of the user.
REJECTIONS
The Examiner rejected claims 1—3, 6—12, and 15—19 under 35 U.S.C.
§ 102(b) as being anticipated Bakis et al. (US Pat. No. 6,219,639 Bl, issued
Apr. 17, 2001).2 (Final Act. 3-9.)
2 The Examiner has withdrawn the rejection of claim 20 under 35 U.S.C.
§ 102(b) over Bakis. (Ans. 2.)
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Application 12/712,747
The Examiner rejected pending claims 1—3, 6—12, and 15—22 under 35
U.S.C. § 103(a) as being unpatentable over Zhang (CN 1940806 A, pub.
Apr. 4, 2007) and Furuyama et al. (US 2002/0152390 Al, pub. Oct. 17,
2002). (Final Act. 10-19.)
ISSUES ON APPEAF
Appellant’s arguments in the Briefs present the following issues:3
Issue One: Whether the Examiner erred in finding Bakis anticipates
1-3, 6-12, and 15-19. (App. Br. 1^U15.)
Issue Two: Whether the Examiner erred in finding the combination of
Zhang and Furuyama teaches or suggests the independent claim 1 limitation,
“the reference image data corresponds to a previously obtained non-standard
facial pose image of the user,” and the similar limitation recited in
independent claims 10 and 19. (App. Br. 15—17.)
Issue Three: Whether the Examiner erred in finding the combination
of Zhang and Furuyama teaches or suggests the claim 20 limitation,
“wherein the determining if the image matches reference image data
comprises using the previously obtained non-standard facial pose image
alone.” (App. Br. 17.)
3 Rather than reiterate the arguments of Appellant and the findings of the
Examiner, we refer to the Appeal Brief (filed July 21, 2014, corrected
Sept. 2, 2014); the Reply Brief (filed Aug. 17, 2015); the Final Office Action
(mailed Jan. 17, 2014); and the Examiner’s Answer (mailed June 17, 2015)
for the respective details.
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Appeal 2015-007605
Application 12/712,747
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellant’s
arguments the Examiner erred. With respect to the obviousness rejections,
we disagree with Appellant’s arguments, and we adopt as our own (1) the
pertinent findings and reasons set forth by the Examiner in the Action from
which this appeal is taken (Final Act. 10-19) and (2) the corresponding
findings and reasons set forth by the Examiner in the Examiner’s Answer in
response to Appellant’s Appeal Brief (Ans. 5—8). We concur with the
applicable conclusions reached by the Examiner, and emphasize the
following.
Issue One 4
The Examiner’s rejection of claims 1—3, 6—12, and 15—19 under 35
U.S.C. § 102(b) as being anticipated by Bakis is incorrectly directed to
versions of the claims that were amended prior to the Final Action. (Cf.
Final Act. 3—9, with 9/30/2013 Amendment, pp. 2—7.) “[T]he examiner
bears the initial burden, on review of the prior art or on any other ground, of
presenting a prima facie case of unpatentability.” In re Oetiker, 977 F.2d
1443, 1445 (Fed. Cir. 1992). In this instance, the Examiner has not met the
burden of showing Bakis anticipates the pending claims, given that the Final
4 Regarding the anticipation rejection, see 37 C.F.R. § 41.39(a)(l)(“An
examiner’s answer is deemed to incorporate all of the grounds of rejection
set forth in the Office action from which the appeal is taken (as modified by
any advisory action and pre-appeal brief conference decision), unless the
examiner's answer expressly indicates that a ground of rejection has been
withdrawn.”). Therefore, this rejection is under our jurisdiction under 35
U.S.C. § 6(b), even though the anticipation rejection is directed to an
incorrect version of the claims.
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Application 12/712,747
Action is directed to incorrect versions of those claims, and therefore we pro
forma reverse this rejection.
Issue Two
In finding Zhang and Furuyama teach or suggest the limitation at
issue, the Examiner relies on the disclosure in Zhang of a computer login
system with an expression identifying function which first compares the live
camera image of a user’s face to stored pre-captured facial images in order
to authorize access, and then further compares the user’s particular facial
expression to the stored images to determine a user login desktop theme.
(Final Act. 11; Zhang pp. 1—2.)
Appellant argues:
Zhang teaches that the user may make any input (make any
face) and simply log in. Zhang then uses expression specific
data to choose a desktop theme. That is, Zhang only works if
all the user’s expressions may be used to log in to the computer.
In fact, Zhang does not require any specific expression for
log in.
(App. Br. 16.) To the contrary, Zhang specifically discloses comparing the
image currently captured by a camera to stored images, and if there is no
match, the “user is blocked [to] log on to the computer.” (Zhang p. 2.)
Moreover, the stored images are of facial expressions that are used to invoke
various desktop themes. (Id.) This at least teaches or suggests that the
stored images are “nonstandard facial pose image[s] of the user,” as required
by the claims. (Ans. 7—8.)
Furthermore, we agree with the Examiner, “there is no specific
definition of a non-standard facial pose given in the applicant’s
specification, but it states that it can take a wide variety of forms.” (Ans. 5;
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Application 12/712,747
see Spec, 32, 35.)5 During prosecution claims are given their broadest
reasonable interpretation in light of the Specification, In re Morris, 127 F.3d
1048, 1054 (Fed. Cir. 1997). Indeed, the Specification describes: “[t]his
disclosure has been presented for purposes of illustration and description but
is not intended to be exhaustive or limiting.” (Spec. 1 50.) Under the
broadest reasonable interpretation, we determine that the Examiner has not
erred in finding the facial expressions taught in Zhang are “nonstandard
facial pose[s]” as claimed. Therefore, we sustain the Examiner’s
obviousness rejection of claims 1,10, and 19.
Issue Three
Appellant argues “Zhang teaches a system that works with many user
expressions, not a single one alone,” in contravention of the claim 20
requirement of “determining if the image matches reference image data
comprises using the previously obtained non-standard facial pose image
alone.” (App. Br. 17.) However, we agree with the Examiner, “the
embodiment of Zhang of only using one facial expression as reference image
5 In the event of further prosecution of this application, we leave it to the
Examiner to consider whether the pending claims should be rejected under
35 U.S.C. § 112, second paragraph, as being indefinite. Specifically, it
appears the claim language “nonstandard facial pose image” is a subjective
term of degree, subject to plural plausible interpretations under a broad but
reasonable interpretation. See Ex parte Miyazaki, 89 USPQ2d 1207, 1211
(BPAI 2008) (precedential). Claim scope cannot depend solely on the
unrestrained, subjective opinion of a particular individual purported to be
practicing the invention. See Datamize LLC v. Plumtree Software, Inc., 417
F.3d 1342, 1350 (Fed. Cir. 2005); see also MPEP § 2173.05(b)(IV).
Although the Board is authorized to reject claims under 37 C.F.R.
§ 41.50(b), no inference should be drawn when the Board elects not to do so.
See MPEP § 1213.02.
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Application 12/712,747
data to logon to the computer would apply” — thus, teaching or suggesting
this claim requirement. (Ans. 8.)
CONCLUSION
For the reasons stated above, we do not sustain the anticipation
rejections of claims 1—3, 6—12, and 15—19.
In addition, for the reasons stated above, we sustain the obviousness
rejections of independent claims 1, 10, 19, and 20. We also sustain the
obviousness rejections of claims 2, 3, 6—9, 11, 12, 15—18, 21, and 22, which
rejections are not argued separately with particularity. (App. Br. 13.)
DECISION
We affirm the Examiner’s obviousness rejection of claims 1—3, 6—12,
and 15—22.6
We reverse the Examiner’s anticipation rejection of claims 1—3, 6—12,
and 15—19.
Because we have affirmed at least one ground of rejection with
respect to each claim on appeal, the Examiner’s decision is affirmed. See 37
C.F.R. § 41.50(a)(1).
6 In the event of further prosecution, we leave the following § 101 issue to
the consideration of the Examiner: we note independent claim 19 is directed
to “a computer readable storage medium having computer readable program
code embodied therewith. . . .” This raises the question under 35 U.S.C. §
101 of whether the phrase “computer readable storage medium” is broad
enough to cover non-statutory signals per se. See Ex parte Mewherter, 107
USPQ2d 1857 (BPAI May 8, 2013) (precedential-in-part).
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Application 12/712,747
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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